USA. v. Johnson

• Decision Date: 13 July 2001
• Docket Number: No. 99-3115,99-3115
• Citation: 349 U.S.App. D.C. 202,254 F.3d 279
• Parties: (D.C. Cir. 2001) United States of America, Appellee v. Robert Johnson, a/k/a Big Rob, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 279

254 F.3d 279 (D.C. Cir. 2001)

United States of America, Appellee v. Robert Johnson, a/k/a Big Rob, Appellant

No. 99-3115

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2000

Decided July 13, 2001

[Copyrighted Material Omitted] Appeal from the United States District Court for the District of Columbia (No. 92cr00442-01)

Mary M. Calkins, Student Counsel, argued the cause as amicus curiae on the side of appellant. With her on the briefs were Steven H. Goldblatt (appointed by the court), Director, and Adam N. Steinman, Supervising Attorney, Appellate Litigation Program, Georgetown University Law Center.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney at the time the brief was filed, John R. Fisher and Roy W. McLeese, III, Assistant U.S. Attorneys. Mary-Patrice Brown, Assistant U.S. Attorney, entered an appearance.

Before: Sentelle, Henderson, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Concurring opinion filed by Circuit Judge Henderson.

Garland, Circuit Judge:

In April 1997, while serving a sentence for drug-related convictions, Robert Johnson filed a motion pursuant to 28 U.S.C. 2255 to vacate his sentence on the ground that he had received ineffective assistance of counsel at sentencing. The district court denied the motion in July 1998. Eleven months later, Johnson asked the court to reopen the time for filing an appeal from that denial because he had only recently received notice of the court's decision. The district court rejected Johnson's request to reopen on the ground that it came too late. We conclude that because the district court's initial decision failed to comply with Federal Rule of Civil Procedure 58, Johnson's time for filing an appeal has not yet begun to run. Accordingly, his motion to reopen was unnecessary, and we remand the case to the district court for further proceedings.

I

The docket in this case contains twelve pages, issued by the district court, that reflect the court's denial of Johnson's motion to vacate his sentence. All twelve pages are stapled together. The first page is entitled "Memorandum and Order" and bears a dated file stamp affixed by the clerk of the district court. The first eleven pages set forth the court's legal analysis, rejecting Johnson's claim that his trial counsel was ineffective. The eleventh page concludes by stating: "An appropriate order follows." The eleventh page is not signed, nor does it have a signature line.

The twelfth page, which is neither file-stamped nor numbered, is entitled "Order." It reads, in its entirety, as follows:

AND NOW, TO WIT, this 10th day of July, 1998, upon consideration of Robert Johnson's motion to vacate, set aside or correct his sentence under 28 U.S.C. 2255, IT IS ORDERED that said motion is DENIED without an evidentiary hearing.

A signature line with the signature of the district judge appears at the bottom.

All twelve pages were filed on July 16, 1998 and were entered on the district court's docket as a single entry, which reads as follows:

MEMORANDUM AND ORDER by Judge Louis C. Bechtle as to ROBERT JOHNSON: denied without evidentiary hearing motion to vacate, set aside or correct sentence pursuant to 28 USC 2255, referencing count(s) 2rs, 3rs (Civil Case No. 97-816 [).]

Johnson states that he was not notified when the court issued the Memorandum and Order. Johnson Mot. to Reopen at 2. On April 19, 1999, Johnson sent a letter to the district court, seeking disposition of his 2255 motion and abandoning an earlier request to supplement the record with additional information. In May 1999, the Clerk of the Court sent Johnson a copy of the docket sheet, reflecting the fact that his 2255 motion had already been denied.

In June 1999, Johnson filed a "Motion to Reopen and or Reissue Judgment," which the district court treated as a motion to reopen the time for filing an appeal. The court denied the motion on August 4, 1999. The court noted that under Federal Rule of Appellate Procedure ("FRAP") 4(a)(1)(B), a prisoner has sixty days from the entry of judgment to file an appeal from the denial of a 2255 motion. Construing July 16, 1998, the day on which its order denying the 2255 motion was filed, as the trigger date, the court found that the time to appeal had expired. The district court then went on to consider whether it could reopen the time to appeal pursuant to FRAP 4(a)(6). That rule permits a district court to grant a party's motion to reopen if: "(A) the motion is filed within 180 days after the judgment or order is entered ...; (B) the court finds that the moving party ... did not receive the notice [of entry of the judgment or order] ... within 21 days after entry; and (C) the court finds that no party would be prejudiced." The district court denied Johnson's motion to reopen on the ground that Johnson had filed it more than 180 days after the court denied his 2255 motion on July 16, 1998.¹

Johnson appealed from the denial of his motion to reopen. This court appointed an amicus curiae and requested briefing on two questions of federal procedure: (1) whether Federal Rule of Civil Procedure 58 ("Rule 58"), which requires that a judgment be set forth in a separate document, applies to 2255 proceedings; and (2) if Rule 58 does apply, whether the district court's order denying Johnson's 2255 motion satisfies that rule. We address each of these questions below.

II

Whether the separate document requirement of Rule 58 applies in appeals from 2255 proceedings is an issue not yet decided by this circuit. Both Johnson and the government believe that it does apply, and we agree.² That conclusion follows from a straightforward reading of the applicable rules. We begin with Rule 11 of the Rules Governing Section 2255 Proceedings for the United States District Courts ("Rule 11"), which states that "[t]he time for appeal from an order entered on a [§ 2255 motion] is as provided in Rule 4(a) of the Federal Rules of Appellate Procedure." Rule 11, 28 U.S.C. foll. 2255. Turning to FRAP 4(a), we learn that a notice of appeal (when the United States is a party) must be filed within sixty days "after the judgment or order appealed from is entered." Fed. R. App. P. 4(a)(1)(B). Similarly, a motion to reopen the time to appeal must be filed within 180 days "after the judgment or order is entered." Fed. R. App. P. 4(a)(6)(A). Finally, and most important here, FRAP 4(a)(7) states that a "judgment or order is entered for purposes of this Rule 4(a) when it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure."

As we held in United States v. Feuver, under FRAP 4(a), "in order to start the clock on a party's right to appeal, the district court must enter a judgment that complies with Rule 58." 236 F.3d 725, 727 (D.C. Cir. 2001); see also United States v. Haynes, 158 F.3d 1327, 1329 (D.C. Cir. 1998); Diamond v. McKenzie, 770 F.2d 225, 227-28 (D.C. Cir. 1985). The same is true with respect to the time period for filing a FRAP 4(a)(6) motion, as that is triggered by the same event. See Fed. R. App. P. 4(a)(6), (7). And because Rule 11 directs that the time for appeal from 2255 orders "is as provided in Rule 4(a)," the Rule 58 trigger applies to appeals from such orders as well.

Several of our sister circuits have applied Rule 58 to 2255 proceedings.³ Only the Second Circuit has declined to do so. Observing that the Advisory Committee notes to the Rules Governing Section 2255 Proceedings state that " 'a motion under 2255 is a further step in the movant's criminal case and not a separate civil action,' " the Second Circuit concluded that such a motion "is not subject to Rule 58 of the civil rules." Williams v. United States, 984 F.2d 28, 30 (2d Cir. 1993) (quoting Rule 11, advisory committee's notes).⁴

We find ourselves in agreement with the bulk of the circuits and in disagreement with the Second. The same Advisory Committee notes referred to by the Second Circuit in Williams v. United States point out that in United States v. Hayman, the Supreme Court held that appeals from orders denying motions under 2255 "are governed by the civil rules applicable to appeals from final judgments in habeas corpus actions." Rule 11, advisory committee's notes (quoting United States v. Hayman, 342 U.S. 205, 209 n.4 (1952)).⁵ Indeed, the Advisory Committee notes explain that the portion of Rule 11 at issue here--the sentence stating that "[t]he time for appeal from an order entered on a [§ 2255 motion] is as provided in Rule 4(a) of the Federal Rules of Appellate Procedure"--was added in 1979 to clarify that Hayman's instruction to apply the civil rules to such an appeal was still good law, "[e]ven though" the revised 2255 rules were based upon the premise that "section 2255 proceedings are a further step in the criminal case." Rule 11, advisory committee's notes.

Nor do we agree with Williams' further suggestion that Rule 11 should be read to incorporate only FRAP 4(a)'s sixtyday period for filing civil appeals,⁶ and not its other provisions. See 984 F.2d at 30. Nothing in the language of Rule 11, which simply states that the time for appeal is "as provided in Rule 4(a)," suggests that courts should apply Rule 4(a)'s time limit without also applying its criterion for determining when that limit begins to run. We therefore follow Rule 11's express direction to apply FRAP 4(a) to 2255 appeals, and then follow FRAP 4(a)'s equally clear direction to apply Federal Rule of Civil Procedure 58 to determine when a judgment is entered and hence when the time for appeal begins.

III

Having concluded that Rule 58 applies to 2255 proceedings, we must now determine whether the requirements of the rule were satisfied in this case. As described above, although a party must file a Rule 4(a)(6) motion to reopen the time to file an appeal within 180...